Al-Nashiri Military Commission: ‘The Man Behind the Curtain’ Turns Defense Counsel Into Cornered Huddled Masses; Prosecution says: ‘Al-Nashiri’s Incompetent to Stand Trial; Now Let’s Continue With the Trial’
This post is the product of research fellow Sean Kennedy’s observations at last week’s al-Nashiri hearings at Guantanamo Bay.
In the first of what was supposed to be four days of hearings in Guantanamo in the case against Abd al-Rahim al-Nashiri—the alleged mastermind behind the U.S.S. Cole bombing—the commissions came to a screeching halt.
Judge James Pohl granted the prosecution’s motion to examine the mental capacity of al-Nashiri and all other scheduled motions for the proceedings were held in abeyance until a determination on al-Nashiri’s capacity was finalized.
The courtroom atmosphere was contentious throughout the duration of the proceedings with what might be termed bickering between both sides and Judge Pohl.
In total, two motions were heard before Judge Pohl affirmed the prosecution’s motion on al-Nashiri’s mental capacity and effectively quashed the hearing until a yet be determined date.
Having said that, the hearing was not without drama.
AE 149 – Motion to Investigate the Ability of Third Party Monitoring of Attorney/Client information.
The morning began with a hearing on a last minute motion filed by the defense on Friday, February 1, 2013, in response to last week’s unsettling revelation that outside governmental agencies could listen to the proceedings remotely, and “close down” the the court without the Judge’s knowledge or permission.
The prosecution elected not to draft a written response to the motion, instead opting to respond on the record. Defense counsel, Commander Steven Reyes, argued that because of this undisclosed monitoring by outside agencies, the defense’s ability to have privileged conversations with their client was impaired and thereby they would not be able to provide effective representation. In addition, the defense argued that further discovery would be necessary to determine whether or not this same kind of remote monitoring system was in place in the holding areas outside of the courtroom and in the attorney conference room on the far side of the island where meetings with the detainees take place.
In response, Mr. Anthony Mattivi, the U.S. attorney representing the prosecution, claimed that the defense was attempting to switch the burden and place it on the government while offering no evidence that any monitoring could take place outside of the courtroom. The prosecution attacked the lack of factual support in the defense’s brief for its claims and stated that the defense was conflating two separate issues. Finally, Mr. Mattivi criticized the defendant’s proposed remedy of shutting down the proceedings to conduct an investigation into the monitoring by stating, “I don’t quite understand how that would work from a legal perspective.”
Judge Pohl was quick to push Commander Reyes about the lack of evidence to support a claim that conversations could be monitored in the holding cells outside the courtroom or in the attorney meeting rooms by the prison. The defense claimed that the events of last week were proof positive of this capability and should be more than enough to overcome its burden of proof and persuasion. The protracted dialogue between Lt. Commander Reyes and Judge Pohl became increasingly heated as the commission wore on, with Judge Pohl contentiously asking, “Does it surprise you that the government can monitor conversations across the world?”
The Judge denied the motion, ruling that the defense did not proffer enough evidence to carry the burden but made note that if evidence did arise it would require serious and significant remedies. However, after the motion was denied, Commander Reyes requested a 3-hour recess to contact ethics specialists to ensure that the defense would not be violating any ethical obligations by continuing the representation in light of the specter of remote monitoring of attorney client conversations.
In addition the defense wanted to speak with the individuals that oversee the courtroom’s technology to determine what, if anything, could be done. Judge Pohl initially took issue with the request and expressed concern that defense was attempting to sua sponte overturn his ruling on the motion. After a prolonged exchange, the Judge granted a one-time exception, allowing this recess to give defense counsel the opportunity to confirm that it was not violating any ethical obligations under the circumstances.
During the break, the defense counsel told the court it learned that third parties could monitor conversations on any microphone inside the courtroom. However, there was no evidence that any audio recordings could be taken from the holding cells outside the courtroom. Interestingly, there was no clear answer with regard to the Attorney meeting room, a revelation that presented great pause for the defense. Judge Pohl emphasized that he would not order an attorney to act in a manner that violates an ethical obligation and said that he understood the defense’s concerns. He reiterated that the current situation did not pose such an ethical issue. Defense counsel had consulted with their ethics counselor and indicated they were ready to proceed. However, as the day would prove, the government would shortly take the position that ultimately forced this entire proceeding into an indeterminate hiatus.
Additionally, an agreement was set up with the prosecution to speak to various technical operators at the detention center to address the remaining confidentiality concerns. However, due to what was said to be the monitoring capabilities from the microphones throughout the court room, defense counsel huddled in a corner of the court room on several occasions in order to confer privately, outside the range of the microphones and what defense counsel referred to as “The Man Behind the Curtain (perhaps having read my colleague, Adam Kirchner’s, report in The Public Record on the KSM hearing). While the motions continued, the “Man Behind the Curtain” is, as of yet, still unidentified, and seemingly poses significant obstacles for the defense going forward.
AE 99D—Government Motion for Commissions to Discuss with the Accused Matter Considered by the Commission During the 18-19 July 2012 and 23 October 2012 Sessions.
The next motion before the Commission involved the prosecution’s request to clarify a waiver of appearance by al-Nashiri for the above-mentioned dates. The prosecution argued that the law has now changed– allowing a detainee to waive his right to appear in the beginning of a particular session while still maintaining the ability to change his mind and appear in the session later in the day. Previously, when a detainee waived the right to appear, the waiver was in force for the full day. The prosecution argued that because of this change the record needed to be clarified and, if necessary, al-Nashiri would need to briefly speak in open court.
The defense countered by asking the court for the ability to investigate underlying facts in any statement al-Nashiri may make on the record if he is required to speak. The defense argued that the investigation would occur for the sole purpose of providing context to these future statements so that they could not be used as evidence against al-Nashiri’s mental competence. Commander Reyes pointed out that the uninvestigated statements made by al-Nashiri were the basis for the prosecution’s current motion to exam his mental capacity to stand trial. Judge Pohl reserved his decision on this issue pending the result of the upcoming motion.
AE—140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706
The third motion of the day had the potential to stop all litigation in the case dead in its tracks. In an unusual twist, the prosecution was petitioning for an investigation into the mental state of al-Nashiri in order to determine whether or not he is able to understand and assist in his own defense. Judge Pohl asked the prosecution if they understood that a grant of this motion would put the case on hiatus until the examination was concluded. Mr. Mattivi acknowledged that he understood; however, his answer would change immediately after the Judge made his ruling.
If granted, the 706 motion would allow the Judge to have a board of medical professionals appointed in order conduct the examination of al-Nashiri to determine if he is competent to understand the trial and assist in his own defense. CDR Andrea Lockhart argued that this examination was necessary because of the defense’s assertion that al-Nashiri suffers from PTSD, as well as statements made by al-Nashiri during a previous session where he waived his right to appear. She further stated that the board that was appointed would be independent from the prosecution or the defense.
Defense counsel Richard Kammen—sporting a symbolic Kangaroo pin on his lapel—countered by acknowledging that al-Nashiri has PTSD related to torture committed against him in a CIA black site, but that his competency has never been in question. The defense expressed concern that the information recorded during the examination would be discoverable by the prosecution in the event that a death penalty hearing becomes necessary. Judge Pohl explained that the defense “holds the keys to the car” regarding the report and that it will not be discoverable by the prosecution unless the defense puts it at issue in the trial. In addition, Mr. Kammen was doubtful that the board would be independent and feared the appointment of “hacks.” Finally, the defense requested the Judge to hear from Dr. Iacopino, who is an expert in the area of torture related PTSD victims, for guidance regarding who should be selected for the medical board if the motion was granted.
Ultimately, Judge Pohl granted the government’s request for the 706 inquiry and with that, further progress in the case was stopped. However, after the Judge’s ruling, Mr. Mattivi posited that the court should continue to hear the pre-trial motions because there was an “assumption of competency” relating to a 706 hearing, despite his previous acknowledgment on the record that this decision would effectively pause the trial. Commander Reyes countered by stating that the presumption is only applied to the hearing that occurs after the 706 motion and that it would not make sense to continue if the prosecution believes Nashiri to be incompetent— as they claim. The Judge agreed with Reyes and set up a tentative schedule for the board to examine Nashiri in approximately 6 weeks.
Mr. Mattivi’s final attempt to continue with the trial was telling. Arguably, the prosecution was attempting to pre-empt any mental capacity challenge made by the defense at a latter date by forcing al-Nashiri to undergo a competency test before the trial starts. It was unusual that the prosecution pushed for a motion that could potentially cause its entire case dismissed if al-Nashiri is found incompetent. However, Mr. Mattivi’s attempt to have the case continue after this motion was granted begs the question of how much the government actually believes it own claim regarding incompetence.
AE 135 – Defense’s Motion to Allow Dr. Crosby to Examine Nashiri without Shackles and not in the Presence of Guards
The final motion for the day involved a pre-arranged medical examination scheduled by the defense. Dr. Sandra Crosby was scheduled to examine al-Nashiri for physical signs of abuse relating to the torture committed by the CIA. The Judge asked Commander Reyes if the session would be observed by video, if there would be guards present outside the examination room, and if Dr. Crosby is willing to sign a waiver. Commander Reyes answered all of the questions in the affirmative. The prosecution, represented by Major Chris Ruge, argued that the shackles and guard presence was a reasonable safety measure that was requested by the JTF facility commander. Judge Pohl dismissed the prosecution’s argument and stated that this was a medical professional approved by the Convening Authority and that the defense request falls within the gambit of reasonable safety measures.
With that the session—and the case—was called to a close. The only item left on the agenda was an interview to take place the following day with the defense’s medical expert Dr. Iacopino. What was supposed to be four days of substantive motion hearings was reduced to a single day with a 3-hour recess. At the conclusion, many of the same issues are outstanding. The “Man Behind the Curtain” remains unknown and can still seemingly monitor the proceedings—and potential attorney client interviews—from a remote location. Further, the prosecution successfully stopped its own case from proceeding forward to trial. While this may seem like an unusual day in court, as Mr. Kammen articulated to the Judge, “Your Honor, it’s GTMO.”
Sean Kennedy is a student at Seton Hall University School of Law. He is also a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law.